Legal

End-User Software Licence Agreement

This agreement applies to FlowMetrics signup and software access. The text below reflects the current document provided for the signup flow.

Parties

1. FlowMetrics Ltd, the Licensor.

2. The user of FlowMetrics software, the Licensee.

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1. Definitions

  1. 1.1In this Agreement, except to the extent expressly provided otherwise:
    1. 1.1.1"Active Project" means any Project within the Software that has not been archived, deleted or otherwise marked inactive in accordance with the functionality of the Software.
    2. 1.1.2"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time.
    3. 1.1.3"Business Day" means any weekday other than a bank or public holiday in England.
    4. 1.1.4"Business Hours" means the hours of 09:00 to 17:00 GMT/BST on a Business Day.
    5. 1.1.5"Documentation" means the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the Licensee.
    6. 1.1.6"Effective Date" means the day on which the Agreement is accepted by the Licensee.
    7. 1.1.7"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these intellectual property rights include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).
    8. 1.1.8"Schedule" means any schedule attached to the main body of this Agreement.
    9. 1.1.9"Software" means the software identified in Part 1 of Schedule 1 (Software Licence Particulars).
    10. 1.1.10"Software Defect" means a defect, error or bug in the Software having a material adverse effect on the appearance, operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:
      1. 1.1.10.aany act or omission of the Licensee;
      2. 1.1.10.bany use of the Software contrary to the Documentation by the Licensee;
      3. 1.1.10.ca failure of the Licensee to perform or observe any of its obligations in this Agreement; and/or
      4. 1.1.10.dan incompatibility between the Software and any other system, network, application, program, hardware or software.
    11. 1.1.11"Software Specification" means the specification for the Software set out in Part 1 of Schedule 1 (Software Licence Particulars) and in the Documentation.
    12. 1.1.12"Term" means the term of this Agreement, in accordance with Clause 3.1.
    13. 1.1.13"Trial" means a period of time where the Licensor has agreed in writing to allow the Licensee to use the Software without any charges incurring as per Clause 7.

2. Interpretation

  1. 2.1In this Agreement, a reference to a statute or statutory provision includes a reference to:
    1. 2.1.athat statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
    2. 2.1.bany subordinate legislation made under that statute or statutory provision.
  2. 2.2The Clause headings do not affect the interpretation of this Agreement.
  3. 2.3References in this Agreement to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
  4. 2.4In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

3. Term

  1. 3.1This Agreement shall apply at all times in which the Licensee has access to FlowMetrics software.

4. Supply of Software

  1. 4.1The Licensor shall make the Software available to the Licensee as a hosted service (Software as a Service or SaaS), accessible via a web browser, during the Term of this Agreement, and shall provide to the Licensee such assistance in relation to access to the Software as the Licensee may reasonably request. The Licensor may, at its discretion, provide maintenance, bug fixes and updates to the Software, and shall use commercially reasonable endeavours to remedy any Software Defect notified by the Licensee within a reasonable timeframe, but gives no guarantee as to response or resolution times.

5. Licence

  1. 5.1The Licensor hereby grants to the Licensee from the date of supply of the Software to the Licensee until the end of the Term a licence to:
    1. 5.1.aaccess the Software via the hosted SaaS platform; and
    2. 5.1.buse the Software in accordance with the Documentation;
    3. 5.1.csubject to the limitations and prohibitions set out and referred to in this Clause 5.
  2. 5.2The Licensee may not sub-license and must not purport to sub-license any rights granted under Clause 5.1 without the prior written consent of the Licensor.
  3. 5.3The licence granted by the Licensor to the Licensee in Clause 5.1 is subject to the limitations regarding the number of installations, the identity of users and the number of concurrent users set out in Part 3 of Schedule 1 (Software Licence Particulars).
  4. 5.4The Software may only be used by the officers and employees of the Licensee.
  5. 5.5Save to the extent expressly permitted by this Agreement or required by applicable law on a non-excludable basis, any licence granted under this Clause 5 shall be subject to the following prohibitions:
    1. 5.5.athe Licensee must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software;
    2. 5.5.bthe Licensee must not alter, edit or adapt the Software;
    3. 5.5.cthe Licensee must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software;
    4. 5.5.dthe Licensee must not access or use the Software in order to build, or assist any third party to build, a product or service that competes with the Software;
    5. 5.5.ethe Licensee must not use any robot, spider, scraper or other automated means to access, extract or index the Software or its data other than via functionality made available by the Licensor; and
    6. 5.5.fthe Licensee must not circumvent or attempt to circumvent any access controls, usage limits or security measures of the Software, nor conduct any penetration testing or vulnerability scanning without the Licensor's prior written consent.
  6. 5.6The Licensee shall be responsible for the security of all access credentials (including usernames and passwords) issued to or created by the Licensee in connection with the Software, and shall use all reasonable endeavours (including all reasonable security measures) to ensure that access to the Software is restricted to persons authorised to use it under this Agreement. The Licensee shall promptly notify the Licensor of any actual or suspected unauthorised access to or use of the Software.
  7. 5.7This licence is non-exclusive, non-transferable, and revocable by the Licensor in accordance with the termination and suspension rights in the Agreement.

6. No assignment of Intellectual Property Rights

  1. 6.1Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the Licensee, or from the Licensee to the Licensor.

7. Charges

  1. 7.1The Licensee shall pay the Licensor £50 per Active Project per calendar month, exclusive of VAT, except during the period where the Licensee is using the Software on a Trial basis.
  2. 7.2Unless otherwise stated in writing, the Licensee's subscription will continue with the same number of active Projects as the previous month and the Licensee will be charged accordingly.
  3. 7.3The Licensee may increase or reduce the number of active Projects in its subscription by giving written notice to the Licensor. Any reduction shall take effect from the start of the next calendar month unless otherwise agreed in writing.
  4. 7.4The Licensee may cancel its subscription by giving written notice to the Licensor. Unless otherwise agreed, cancellation shall take effect at the end of the calendar month in which notice is received.
  5. 7.5The Licensor may suspend the Licensee's access to the Software if any undisputed invoice remains unpaid after its due date, provided that the Licensor has given the Licensee written notice of non-payment and a reasonable opportunity to remedy the non-payment.
  6. 7.6In addition to Clause 7.5, the Licensor may suspend the Licensee's access to the Software (in whole or in part) immediately and without liability where the Licensor reasonably considers this necessary to:
    1. 7.6.aaddress a security threat, vulnerability or attack affecting the Software;
    2. 7.6.bprevent or stop a breach by the Licensee of Clause 5; or
    3. 7.6.ccomply with a legal or regulatory requirement.
  7. 7.7The Licensor shall notify the Licensee of any such suspension as soon as reasonably practicable and shall restore access promptly once the relevant cause has been resolved.

8. Payments

  1. 8.1The Licensee shall pay all properly issued invoices in accordance with Clause 7.
  2. 8.2All amounts stated in this Agreement are exclusive of VAT and any other applicable taxes.
  3. 8.3If the Licensee fails to pay any undisputed amount by the due date, the Licensor may charge interest on the overdue amount at the statutory rate applicable to late payments of commercial debts, accruing daily from the due date until payment is received.
  4. 8.4Termination or expiry of this Agreement shall not affect the Licensee's obligation to pay any charges properly incurred before the effective date of termination or expiry.

9. Warranties

  1. 9.1The Licensor warrants to the Licensee that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
  2. 9.2The Licensor warrants to the Licensee that:
    1. 9.2.athe Software as provided will conform in all material respects with the Software Specification; and
    2. 9.2.bthe Software will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs.
  3. 9.3The Licensor warrants to the Licensee that the Software, as supplied by FlowMetrics and used in accordance with the Agreement, will be supplied in compliance with all laws, statutes and regulations applicable to the Licensor in its provision of the Software. For the avoidance of doubt, the Licensor gives no warranty that the Licensee's particular use of the Software, or the Licensee's own data, processes or business activities, will comply with any laws, statutes or regulations applicable to the Licensee.
  4. 9.4The Licensor warrants to the Licensee that the Software, when used by the Licensee in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person, save that this warranty shall not apply to the extent that any infringement arises from:
    1. 9.4.aany modification of the Software not made by or on behalf of the Licensor;
    2. 9.4.buse of the Software in combination with any system, software, data or hardware not supplied or approved by the Licensor; or
    3. 9.4.cthe Licensee's own data or content, or any use of the Software contrary to this Agreement or the Documentation.
  5. 9.5The Licensee warrants to the Licensor that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
  6. 9.6All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

10. Acknowledgements and warranty limitations

  1. 10.1The Licensee acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.
  2. 10.2The Licensee acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Licensor gives no warranty or representation that the Software will be entirely secure.
  3. 10.3The Licensee acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compatible with any other software.
  4. 10.4The Licensee acknowledges that the Licensor will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Software; and, except to the extent expressly provided otherwise in this Agreement, the Licensor does not warrant or represent that the Software or the use of the Software by the Licensee will not give rise to any legal liability on the part of the Licensee or any other person.
  5. 10.5The Licensee acknowledges that the Software is provided as a beta / evaluation version (as identified in Schedule 1), that it is under active development and may contain a higher incidence of defects, errors and bugs than a generally available release, and that features may change, be added or be withdrawn during the Term. The Licensee acknowledges that it should not rely solely on the Software, and remains responsible for independently verifying any output (including any commercial, cost, valuation or payment information) before relying on it.
  6. 10.6The Software is provided on an "as available" basis. The Licensor gives no warranty or representation as to the availability or uptime of the Software, and does not commit to any service levels during the Term, save as may be separately agreed in writing.
  7. 10.7The Licensee acknowledges that the Licensor is not authorised or regulated by the Financial Conduct Authority and is not a bank, payment institution or e-money institution. Where the Software facilitates any payment, drawdown or movement of funds, such services are provided by third-party regulated payment providers under their own terms, and the Licensor does not itself hold, transmit or control any client funds.

11. Limitations and exclusions of liability

  1. 11.1Nothing in this Agreement will:
    1. 11.1.alimit or exclude any liability for death or personal injury resulting from negligence;
    2. 11.1.blimit or exclude any liability for fraud or fraudulent misrepresentation;
    3. 11.1.climit any liabilities in any way that is not permitted under applicable law; or
    4. 11.1.dexclude any liabilities that may not be excluded under applicable law.
  2. 11.2The limitations and exclusions of liability set out in this Clause 11 and elsewhere in this Agreement:
    1. 11.2.aare subject to Clause 11.1; and
    2. 11.2.bgovern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
  3. 11.3Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.
  4. 11.4Neither party shall be liable to the other party in respect of any loss of revenue or income.
  5. 11.5Neither party shall be liable to the other party in respect of any loss of use or production.
  6. 11.6Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.
  7. 11.7The Licensor shall not be liable to the Licensee in respect of any loss or corruption of any data, database or software, unless caused by the Licensor's gross negligence or wilful misconduct. The Licensee acknowledges that it is responsible for maintaining its own backups of any data it inputs into the Software, save to the extent backup functionality is expressly provided by the Software.
  8. 11.8Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
  9. 11.9Subject to Clause 11.1, the total aggregate liability of the Licensor to the Licensee under or in connection with this Agreement (whether arising in contract, in tort (including negligence), for breach of statutory duty, or otherwise) shall not exceed the total Charges paid and payable by the Licensee to the Licensor under this Agreement in the 12-month period immediately preceding the event giving rise to the liability.
  10. 11.10The Licensee acknowledges that, during any period in which the Software is provided free of charge (including the Trial period under Clause 7.1), the Charges paid for the purposes of Clause 11.9 may be nil.

12. Termination

  1. 12.1The Licensor may terminate this Agreement by giving to the Licensee 14 days' written notice of termination. During the trial period referred to in Clause 7.1, the Licensor may terminate this Agreement, or withdraw or modify the Software, on giving the Licensee not less than 7 days' written notice.
  2. 12.2During a Trial period, the Licensee may terminate this Agreement by giving to the Licensor 14 days' written notice of termination. In any other case, termination will take place at the end of the calendar month in which notice is given, as set out in Clause 7.4.
  3. 12.3Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
    1. 12.3.athe other party commits any irremediable material breach of this Agreement;
    2. 12.3.bthe other party commits a material breach of this Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 14 days following the giving of a written notice to the other party requiring the breach to be remedied; or
    3. 12.3.cthe other party persistently breaches this Agreement (irrespective of whether such breaches collectively constitute a material breach).
  4. 12.4Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
    1. 12.4.athe other party:
      1. 12.4.a.iis dissolved;
      2. 12.4.a.iiceases to conduct all (or substantially all) of its business;
      3. 12.4.a.iiiis or becomes unable to pay its debts as they fall due;
      4. 12.4.a.ivis or becomes insolvent or is declared insolvent; or
      5. 12.4.a.vconvenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
    2. 12.4.ban administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
    3. 12.4.can order is made for the winding up of the other party, or the other party passes a resolution for its winding up.

13. Effects of termination

  1. 13.1Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 2, 6, 8, 11, 13, 15, 16, and 17.
  2. 13.2Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
  3. 13.3For the avoidance of doubt, the licences of the Software in this Agreement shall terminate upon the termination of this Agreement; and, accordingly, the Licensee must immediately cease to use the Software upon the termination of this Agreement.
  4. 13.4Within 10 Business Days following the termination of this Agreement, the Licensee shall:
    1. 13.4.acease all access to and use of the Software; and
    2. 13.4.birrevocably delete from all computer systems in its possession or control any copies of the Documentation and any other Confidential Information of the Licensor, and if the Licensor so requests the Licensee shall certify to the Licensor, in a written document signed and provided to the Licensor within 5 Business Days following the receipt of the Licensor's request, that the Licensee has fully complied with the requirements of this Clause 13.4.
  5. 13.5The Licensee may, at any time during the Term and for a period of 10 Business Days following termination, export its data from the Software using the export functionality made available by the Licensor. Following that period, the Licensor may delete the Licensee's data from the Software, save to the extent the Licensor is required to retain it by applicable law. The Licensor shall, on the Licensee's written request made within that period, provide reasonable assistance with such export.
  6. 13.6Upon termination of this Agreement, no intellectual property rights will be forfeited by the Licensor, and any iterations of the Software and all derivatives, documentation, and products surrounding the Software shall remain solely owned by the Licensor.

14. Notices

  1. 14.1Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 14.2):
    1. 14.1.adelivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
    2. 14.1.bsent by email, in which case the notice shall be deemed to be received immediately,
  2. 14.2If the stated time of deemed receipt is not within Business Hours, the time of deemed receipt shall be when Business Hours next begin after the stated time.

15. General

  1. 15.1No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
  2. 15.2If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
  3. 15.3This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
  4. 15.4Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
  5. 15.5This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
  6. 15.6Subject to Clause 11.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
  7. 15.7This Agreement shall be governed by and construed in accordance with English law.
  8. 15.8The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
  9. 15.9Both parties shall comply with their respective obligations under the Data Protection Laws (as defined in Clause 17), and shall put in place appropriate technical and organisational measures wherever personal data is processed. The parties' respective data protection obligations are set out more fully in Clause 17.

16. Confidentiality

  1. 16.1In this Clause 16, "Confidential Information" means all information (in any form) disclosed by or on behalf of one party (the "Disclosing Party") to the other (the "Receiving Party") that is marked as confidential or that ought reasonably to be regarded as confidential, including:
    1. 16.1.ain the case of the Licensor, the Software, its source code, object code, architecture, design, know-how, the Documentation, and all pricing and product information; and
    2. 16.1.bin the case of the Licensee, its business data and project data input into or generated by the Software.
  2. 16.2The Receiving Party shall:
    1. 16.2.akeep the Disclosing Party's Confidential Information confidential and not disclose it to any third party except as permitted by this Agreement;
    2. 16.2.buse it only for the purpose of exercising its rights and performing its obligations under this Agreement; and
    3. 16.2.cprotect it using no less than a reasonable standard of care.
  3. 16.3The obligations in Clause 16.2 do not apply to information that:
    1. 16.3.ais or becomes public through no breach of this Agreement;
    2. 16.3.bwas lawfully in the Receiving Party's possession before disclosure;
    3. 16.3.cis lawfully obtained from a third party without restriction; or
    4. 16.3.dis independently developed by the Receiving Party without reference to the Confidential Information.
  4. 16.4The Receiving Party may disclose Confidential Information to its officers, employees and professional advisers who need to know it for the purposes of this Agreement and who are bound by equivalent obligations of confidence, and to the extent required by law or any competent authority (giving the Disclosing Party, where lawful, prior notice).
  5. 16.5This Clause 16 shall survive termination of this Agreement and continue for so long as the relevant information remains confidential.

17. Data Protection

  1. 17.1In this Clause 17, "Data Protection Laws" means the UK GDPR (as defined in the Data Protection Act 2018), the Data Protection Act 2018, and all other applicable laws relating to the processing of personal data; and the terms "controller", "processor", "data subject", "personal data" and "processing" have the meanings given to them in the Data Protection Laws.
  2. 17.2The parties acknowledge that, in respect of any personal data processed by the Licensor on behalf of the Licensee through the Software, the Licensee is the controller and the Licensor is the processor. Each party shall comply with its obligations under the Data Protection Laws.
  3. 17.3The Licensee warrants that it has a lawful basis to provide the personal data to the Licensor and to instruct the Licensor to process it as contemplated by this Agreement, and that any required notices have been given and consents obtained.
  4. 17.4The Licensor shall, in respect of personal data processed on behalf of the Licensee:
    1. 17.4.aprocess it only on the documented instructions of the Licensee (including as set out in this Agreement), unless required to do otherwise by law;
    2. 17.4.bensure that persons authorised to process it are subject to a duty of confidence;
    3. 17.4.cimplement appropriate technical and organisational measures to ensure a level of security appropriate to the risk;
    4. 17.4.dnot engage another processor without the Licensee's general written authorisation, and shall inform the Licensee of any intended changes concerning the addition or replacement of sub-processors;
    5. 17.4.etaking into account the nature of the processing, assist the Licensee by appropriate technical and organisational measures, insofar as possible, in responding to data subject requests;
    6. 17.4.fassist the Licensee in ensuring compliance with its obligations regarding security, breach notification and data protection impact assessments;
    7. 17.4.gnotify the Licensee without undue delay on becoming aware of a personal data breach; and
    8. 17.4.hat the choice of the Licensee, delete or return all personal data after the end of the provision of services, save to the extent retention is required by law.
  5. 17.5The Licensor shall make available to the Licensee information reasonably necessary to demonstrate compliance with this Clause 17, and shall allow for and contribute to audits conducted by the Licensee or its authorised auditor on reasonable prior written notice, no more than once in any 12-month period (save where required following a personal data breach or by a regulator).
  6. 17.6The Licensee authorises the Licensor to appoint the third-party hosting and payment providers used in the provision of the Software as sub-processors, subject to the Licensor imposing data protection terms on them no less protective than those in this Clause 17.

Schedule 1 (Software Licence Particulars)

Schedule 1.1 Specification of Software

  1. S1.1Name: FlowMetrics
  2. S1.2Description: Software for the intended use by consultants working in construction and property development, to ease communication and the creation and delivery of documents between parties via the employment of streamlined, structured processes.
  3. S1.3Version/Modules Included: Beta v0.1

Schedule 1.2 Timetable

  1. S1.4Implementation/Onboarding Period: None.
  2. S1.5Renewal: Monthly

Schedule 1.3 Software licence

  1. S1.6License Type: Non-exclusive, non-transferable, revocable license to access and use the Software via SaaS platform.
  2. S1.7Permitted Use: Internal business operations of the Licensee only.
  3. S1.8Restrictions: No resale, sublicensing, or redistribution. No reverse engineering, decompiling, or modification.
  4. S1.9Usage Limits: Access is limited to the officers and employees of the Licensee. No fixed limit on the number of named or concurrent users, save as the Licensor may notify in writing.
  5. S1.10Support & Maintenance: Licensor will provide updates, patches, and technical support during the Term, within reasonable timeframes.